Judge: John J. Kralik, Case: 23BBCV02490, Date: 2024-10-04 Tentative Ruling

Case Number: 23BBCV02490    Hearing Date: October 4, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

Plaintiff Maksim Merzel (“Plaintiff”) alleges that he purchased a 2021 Chevrolet Bolt on March 23, 2021 at Defendant California Automotive Retailing Group, Inc. dba Stevens Creek Chevrolet (“Stevens Creek”).  He alleges that in June 2021, he began noticing distinct electric shocks emanating from the vehicle, which were mildly painful.  He alleges that he called the dealership’s sales advisor and was told not to worry, as electrical vehicles occasionally produced a mild discharge.  Plaintiff alleges that in October 2022, he began noticing the electrocution had become very severe.  He alleges that he brought the vehicle to Keyes Chevrolet and informed the service representative about the issue; he was then informed to contact Defendant General Motors, LLC (“GM”) directly.  Plaintiff alleges that on January 6, 2023, he was closing the driver’s side door to the vehicle when he was electrocuted severely, which caused his heart to enter atrial fibrillation.  Subsequently, Plaintiff ceased operating his vehicle. 

Plaintiff alleges that on February 14, 2023, his vehicle was physically inspected and video recorded by GM’s engineer, who was able to reproduce and confirm the electrocution.  Plaintiff alleges that GM planned to conduct a second inspection with its top engineers and set Plaintiff up with a rental car at a limit of $30 a day with Enterprise.  Plaintiff alleges that no rentals were available at $30 a day, he paid for a rental out of pocket, he incurred insurance payments on a vehicle he could not drive, and GM did not promptly conduct a second inspection as promised.  Plaintiff alleges that he eventually purchased a new Chevy Bolt.  He alleges that he did not have a prior history of cardiac defects or experiences with atrial fibrillation, he may now need a cardiac ablation procedure, his resting heart rate is notably higher than before, and his arm continues to hurt and have spasms. 

The complaint, filed October 24, 2024, alleges causes of action for: (1) products liability; (2) breach of implied warranty of merchantability under the Song Beverly Warranty Act; (3) breach of express warranty under the Act; (4) fraudulent inducement-concealment; and (5) IIED.   

B.    Motion on Calendar

On July 1, 2024, Plaintiff filed a motion to compel the deposition of GM’s person most knowledgeable (“PMK”). 

On August 19, 2024, GM filed an opposition brief.

On August 23, 2024, Plaintiff filed a reply brief.

On September 20, 2024, GM filed a notice of lodging of documents in support of its opposition brief. 

On September 23, 2024, Plaintiff filed objections to GM’s notice of lodging. 

EVIDENTIARY OBJECTIONS

            Plaintiff objected to GM’s notice of lodging of documents.  GM filed a 4-page document on September 20, 2024, stating that it has lodged Plaintiff’s response to GM’s request for production, set two (“RPD”).  Plaintiff objected to the lodging of documents, arguing that it was not timely filed with the opposition papers, Plaintiff’s responses are incomplete and misleading, and the responses are irrelevant to this motion.

The evidentiary objections are sustained.  The Court notes that no exhibits have been attached to the notice of lodging.  In addition, the Court declines to consider GM’s September 20, 2024 papers as they were filed for the first time after Plaintiff’s reply brief was filed and Plaintiff’s responses to discovery is not relevant to this motion to compel the deposition GM’s PMK. 

DISCUSSION

            Plaintiff moves to compel the deposition of GM’s PMK and for the production of documents requested in the deposition notice. 

            Plaintiff served the deposition notice of GM on January 13, 2024, setting the deposition for February 12, 2024.  (Mot., Ex. 1.)  The deposition notice includes 7 topics of examination and 20 requests for production of documents (“RPD”).  (See id.)  On February 5, 2024, Defendant served its objection to the notice.  (Id., Ex. 2.)  On February 29, 2024, Plaintiff’s counsel Alena Klimianok sent a responsive meet and confer letter about the objections and offered 5 additional dates to take the deposition.  (Id., Ex. 3.)  Plaintiff argues that GM did not appear for the February 12, 2024 deposition.  Plaintiff’s counsel states that she, GM’s counsel, and a GM representative met and conferred on May 15, 2024, wherein the parties agreed that GM would confer with its clients regarding the deposition.  (Mot., Ex. 4.)  Plaintiff argues that no further communication was received by GM’s counsel.  (Klimianok Decl., ¶5.) 

             In opposition, GM argues that prior to filing the lawsuit, GM’s legal staff and representatives conducted an inspection of the subject vehicle under the direction and supervision of counsel in anticipation of litigation, such that the deposition topics and RPDs improperly seek attorney work product, violate the attorney-client privilege, and seek the premature disclosure of expert discovery.  GM argues that Plaintiff lacks good cause for the discovery and the topics/RPDs are overbroad and seek privileged material. 

A.   Deposition Topics

Plaintiff seeks to depose GM’s PMK on the following 7 deposition topics:

·      1. GM’s inspection of Plaintiff’s Chevrolet Bolt EV on February 14, 2023.

·      2. Any and all actions taken by GM’s inspector during the inspection of Plaintiff’s vehicle on February 14, 2023.

·      3. Any and report(s) prepared by GM’s inspector after the inspection of Plaintiff’s vehicle on February 14, 2023.

·      4. Any communications from/to GM’s inspector after the inspection of Plaintiff’s vehicle on February 14, 2023.

·      5. GM’s actions prior to the inspection of Plaintiff’s vehicle on February 14, 2023 with emphasis on scheduling the inspection.

·      6. Any discoveries made by GM’s inspector during the inspection of Plaintiff’s vehicle on February 14, 2023.

·      7. All injuries and/or electric shocks suffered by GM’s inspector during the inspection of Plaintiff’s vehicle on February 14, 2023.

“A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.”  (CCP § 2018.030(a).)  Work product of an attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.  (CCP § 2018.030(b).)

The attorney-client privilege is a privilege to refuse to disclose, and to prevent another form disclosing, a confidential communication between the client and the lawyer.  (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1521.)  “‘Confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”  (Id.)  The client is the holder of the attorney-client privilege.  (Evid. Code § 953.)  “The party asserting the privilege need only present facts which support a prima facie claim of privilege.  The party opposing the privilege must bear the burden of showing that the claimed privilege does not apply or that an exception exists or that there has been an express or implied waiver.”  (OXY Resources Cal. LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894 [internal quotations and citations omitted].)  The attorney-client privilege may be waived when the holder of the privilege discloses a significant portion of the communication, has consented to disclosure, or fails to claim the privilege.  (Evid. Code, § 912.) 

In support of its claims of privilege, GM provides the declaration of GM’s legal staff attorney Michael Steinberger.  Mr. Steinberger states that on January 17, 2023, prior to Plaintiff filing the lawsuit, Plaintiff filed a claim directly with GM related to his vehicle and that claim was forwarded to ESIS, a company that handles prelitigation claims for GM under the supervision of GM’s legal staff.  (Steinberger Decl., ¶2.)  He states that as a part of the investigation, on February 14, 2023, GM’s representative performed an inspection of the subject vehicle at the direction and under the supervision of GM’s legal staff and its counsel.  (Id., ¶3.)  He states that the inspection was performed to gather information and evaluate Plaintiff’s claims as to the subject vehicle.  (Id.) He states that at no time was Plaintiff privy to GM’s legal staff’s communications with its counsel or representative, nor was he provided with analysis, impressions, methods, or conclusions of its legal staff, counsel, or representatives, which were “all performed and conducted under the cloak of attorney work product.” (Id.)  He states that at no time did GM make any of its engineers or consultants available to Plaintiff to discuss the investigation or evaluation of his claims that were performed at the request of GM’s legal staff.  (Id.)  GM also provides the declaration of defense counsel Philip Cosgrove, who states that Plaintiff did not communicate with GM’s engineers and GM’s engineers never contacted Plaintiff nor had discussion with Plaintiff regarding the result of the inspection; rather, Plaintiff only discussed his claims with an investigator who was directed by GM’s legal staff to gather information regarding Plaintiff’s claim and inform Plaintiff on what may occur next.  (Cosgrove Decl., ¶6.)  

Plaintiff argues that his claims are premised upon the defects in his vehicle, such that it would be unreasonable for him to be precluded from knowing how GM inspected and attempted to repair the vehicle.  He argues that it would be unreasonable for GM to be able to block him from information regarding the inspection solely because he filed a lawsuit against GM.  In the reply brief, Plaintiff requests that if the Court finds validity to GM’s claims of privilege, then the Court should conduct an in camera review of the materials to determine how certain information/document should be handled and whether they should be disclosed.  (Reply at p.5.) 

Here, GM has provided evidence in the form of declarations that the inspection was conducted at the direction of GM’s legal staff in anticipation of litigation.  However, the Court also recognizes that there does not appear to be any other method for Plaintiff to obtain information about the inspection of his vehicle performed by GM’s representatives except by way of deposition and potentially the notes prepared by GM’s inspector/engineer who performed the inspection.  At this time, the Court will allow the deposition of GM’s PMK to go forward.  The basic, underlying facts regarding the inspection, how it was conducted, observations made, injuries resulting from electric shock experienced by the inspector/engineer, etc. may be asked and is discoverable by way of the deposition.  These are basic facts that do not involve legal theories, work product, or attorney-client communications.   However, GM’s counsel may raise objections to questions directed at communications made between the inspector/engineer and GM’s legal staff or attorneys, contents of documents prepared for GM’s attorneys, and any communications and notes made by GM’s attorneys to the inspector/engineer.  Such objections may be preserved in the deposition transcript and discussed by the parties in meet and confer discussions following the deposition. 

B.    RPDs

Plaintiff also seeks the production of documents from its deposition notice with respect to RPD Nos. 1-20. 

RPD No. 1 seeks all documents which reference the inspection of Plaintiff’s Chevrolet Bolt that occurred on or about February 14, 2023.  RPD No. 2 seeks all communications between the inspector who inspected Plaintiff’s Chevrolet Bolt on February 14, 2023 and GM and its officers, employees, agents, and/or staff regarding the inspection of Plaintiff’s vehicle.  RPD No. 3 seeks all reports, emails and/or other communications generated by the inspector who inspected Plaintiff’s vehicle on February 14, 2023 regarding Plaintiff’s vehicle.  RPD No. 6 seeks all communications, with any party, by the inspector who inspected Plaintiff’s vehicle on February 14, 2023 regarding Plaintiff’s vehicle.  RPD No. 8 seeks any documents referencing the scheduling of any follow-up inspection of Plaintiff’s vehicle.  RPD No. 9 seeks any documents referencing any dangerous condition on Plaintiff’s vehicle during and/or after the inspection on February 14, 2023.  RPD No. 15 seeks all documents referencing the repurchase of Plaintiff’s vehicle.  RPD No. 16 seeks all notes taken on February 14, 2023 by the inspector who inspected Plaintiff’s vehicle regarding Plaintiff’s vehicle.  RPD No. 17 seeks all documents referencing injuries and/or electric shocks suffered by the inspector who inspected Plaintiff’s vehicle on or about February 14, 2023.  RPD No. 18 seeks all correspondence between any GM’s employees, agents, staff, officers, and/or contractors regarding Plaintiff’s vehicle. 

GM objected to these RPDs, arguing that the February 14, 2023 inspection was performed under the direction of GM’s counsel such that the documents are protected by the attorney-client privilege and attorney work product doctrine.  As discussed above, these documents may violate the attorney work product doctrine, as they were prepared by GM’s inspector/engineer at the direction of GM’s counsel in anticipation of litigation.  However, at this time, the Court is not aware of what particular documents may be at issue and whether some of the documents may be discoverable.  GM is ordered to produce a privilege log pursuant to CCP § 2031.240 to identify the documents that are claimed to be privileged so that Plaintiff may evaluate and the parties may meet and confer on whether the documents are indeed privileged.  The motion is granted as to RPD Nos. 1-3, 6, 8-9, and 15-18. 

RPD No. 4 seeks a blank copy of an inspection report that is utilized after a vehicular inspection.  GM objected that RPD No. 4 is overly broad and irrelevant, and seeks documents protected by the attorney-client privilege and work product doctrine.  A blank copy of the inspection report does not include an attorney’s impressions, conclusions, opinions, or legal research or theories.  GM has not shown how a blank form would constitute attorney-client communications (or that an attorney prepared the document in the first place).  Thus, the objections are overruled.  The motion is granted as to RPD No.4. 

RPD No. 5 seeks all documents referencing the scheduling of the inspection of Plaintiff’s vehicle.  GM responded to RPD No. 5 by referring to communications between GM and Plaintiff regarding the scheduling of the vehicle.  GM also objected on the same basis as above regarding privilege.  If GM has responsive documents to the scheduling of the inspection, such documents should be produced.  GM has not justified how the administrative task of scheduling an inspection would constitute attorney work product or attorney-client communications.  The motion is granted as to RPD No. 5. 

            RPD No. 7 seeks any pictures and/or videos taken of Plaintiff’s vehicle by the inspector who inspected Plaintiff’s vehicle February 14, 2023.  GM responded by referring Plaintiff to the documents produced in response to Plaintiff’s RPD (set one) No. 6 and objected on the basis of privilege.  If photographs/videos are available, they should be produced again at the deposition for authentication purposes.  The motion is granted as to RPD No. 7. 

            RPD No. 10 seeks GM’s Policy and Procedures regarding inspection of customer vehicles.  RPD No. 11 seeks GM’s Policy and Procedures regarding immediate repurchase of dangerous vehicles.  RPD No. 12 seeks GM’s Policy and Procedures regarding informing customers that a vehicle is dangerous to operate and should not be operated.  GM objected that the RPDs were overly broad and irrelevant and sought documents protected by the attorney-client privilege and work product doctrine.  The documents sought are overbroad in their request, as they are not limited in time, limited to policies and procedures pertaining to the subject vehicle, or limited to geographical location.  As such, the motion is denied as to RPD Nos. 10-12.  Plaintiff should narrowly tailor these requests to only documents relevant to this action and re-propound them in an amended deposition notice. 

            RPD No. 13 seeks a list of GM’s employees, agents, staff, and/or officers who were aware of the inspection of Plaintiff’s vehicle from January 6, 2023 to July 31, 2023.   RPD No. 14 seeks a list of GM’s employees, agents, staff, and/or officers who were aware of any defect noted as to Plaintiff’s vehicle from January 6, 2023 to July 31, 2023.  GM similarly objected on the basis of privilege.  However, the information sought here pertains to potential witness information and, thus, is discoverable.  The motion is granted as to RPD Nos. 13-14. 

             RPD No. 19 seeks the schematics on the 2021 Chevrolet Bolt EV’s electric system.  RPD No. 20 seeks a list of all materials and/or compounds used inside and outside the 2021 Chevrolet Bolt.  GM referred Plaintiff to the Service Manual of the 2021 Chevrolet Bolt identified in its response to Plaintiff’s RPD (set one) No. 22 and objected that the terms in the RPDs were vague and overbroad.  The motion is granted as to RPD Nos. 19-20.  Even if GM previously produced the documents in response to Plaintiff’s written discovery, production should be made again for the purposes of the deposition.  If Plaintiff does not find the Service Manual to be sufficient as a response, Plaintiff should more specifically define what he means by “schematics” regarding the vehicle’s electric system.

C.    Sanctions

Plaintiff seeks $3,610 in sanctions for filing the motion.  GM argues that sanctions are inappropriate.  GM does not seek sanctions for filing the opposition.  The Court declines to impose sanctions for this motion, as there was substantial justification in GM presenting its arguments and claims of privilege in the opposition brief. 

CONCLUSION AND ORDER

Plaintiff Maksim Merzel’s motion to compel the deposition of Defendant General Motors LLC’s person most knowledgeable is granted in part and denied in part.  The motion is granted in part such that Defendant is ordered to produce a PMK for deposition on a mutually agreeable deposition date that is within 60 days of this order.  If the parties are unable to agree to a date, then Plaintiff may unilaterally notice the deposition within 30 days of the last meet and confer efforts.  Defendant is ordered to produce documents in response to RPD Nos. 1-9 and 13-20 at least 5 days prior to the noticed deposition date.  The motion is denied as to RPD Nos. 10-12.  

No sanctions shall be awarded on this motion.

Plaintiff shall provide notice of this order.